As you know, the law stipulates that income tax must be levied on income and capital gains.
In the case of donations and inheritance transfers, the Federal Government takes the view that if there is an increase in the value of the property compared to the value previously declared by the donor or the deceased, IR would be levied, when in reality the increase in assets that affects those who receive the property by donation or inheritance is already taxed by the State through ITCMD (Imposto sobre Transmissão Causa Mortis e Doação).
However, this provision has always been the subject of debate and the STF has held that, in the case of a donation, if the donor disposes of his assets, he certainly does not benefit from the increase in value of the property to be donated, so IR should not be levied, not least because the person who receives the property, whether by donation or inheritance, is already obliged to pay the other state tax, ITCMD, which constitutes double taxation.
In this scenario, it is important to emphasize that the decisions were not handed down under what we call the general repercussion regime, i.e. they have effects only for the parties to the case in question. It is therefore extremely important that, in the event of a transfer of assets by gift or on death, specialists in the field are consulted so that the decision can be used as a precedent and guarantee the right not to incur income tax on the transaction.
In addition, this recent position by the Supreme Court reaffirms the importance of thinking about inheritance tax planning as a means of ensuring less onerous and more secure transfers of assets.
